DUI Draws Sanction

A six-month suspension has been imposed by the New York Appellate Division for the Second Judicial Department

On September 17, 2021, at approximately 10:28 p.m., a bystander observed the respondent’s vehicle to be in a single-vehicle accident and called the 911 emergency number. Police arrived on scene and observed the respondent’s vehicle to be damaged, with the air bags deployed, and further observed the respondent to be with his minor daughter (hereinafter the daughter), who was a passenger in the vehicle. While approaching the respondent, the police smelled an odor of alcohol emanating from the respondent’s breath and observed that the respondent had slurred speech and watery eyes and appeared confused and dazed. The respondent informed the police on scene that he was a former Manhattan Assistant District Attorney and that he had had one drink. The respondent denied having any injuries, but the daughter complained of pain to her head and arm and appeared to be in shock. The daughter was seen by emergency medical services personnel on scene and was released to the custody of her mother, who arrived on scene after the accident and refused medical attention on the daughter’s behalf.

The police determined that the respondent drove his vehicle eastbound on Hillside Road, drifted to the left side of the road, and struck a large tree, which caused the vehicle to spin to face southbound and strike a curb. The police administered a field sobriety test to the respondent, and he performed poorly. The respondent subsequently refused to give a breath test sample for the portable breath test and was arrested.

Following his arrest, the respondent was charged with violating: (1) Vehicle and Traffic Law § 1192(2-a)(b) (aggravated driving while intoxicated with a child, a felony); (2) Vehicle and Traffic Law § 1192(3) (driving while intoxicated, a misdemeanor); (3) Penal Law § 260.10(1) (acting in a manner injurious to a child less than 16, a misdemeanor); and (4) Vehicle and Traffic Law § 1194(1)(b) (refusal to take a breath test, a traffic infraction).

The respondent was subsequently charged by Superior Court Information (SCI) No. 72584/22 in the Supreme Court, Westchester County, with one count of aggravated driving while intoxicated with a child, in violation of Vehicle and Traffic Law § 1192(2-a)(b), a felony, and driving while intoxicated, in violation of Vehicle and Traffic Law § 1192(3), an unclassified misdemeanor. On January 24, 2023, the respondent pleaded guilty to count two of the SCI, driving while intoxicated, in violation of Vehicle and Traffic Law § 1192(3). The respondent was placed on interim probation, which included the following conditions: being barred from driving, continued compliance with any treatment he was engaged in, 50 hours of community service, a Mothers Against Drunk Driving impact panel, an alcohol monitoring device, and completion of a parenting skills program. The respondent’s sentencing was adjourned to January 23, 2024, for the respondent to satisfy the conditions of the plea.

Mitigation

After his arrest, the respondent volunteered with a food pantry in Port Chester for approximately a year and a half, at which point he joined the board of directors for the organization that operated the food pantry. The respondent, as part of his sentence, was ordered to perform 150 hours of community service; however, by the end of the first year of his interim probation, he had completed 180 hours of service with the food pantry.

The respondent testified that he had not had a drink of alcohol since the night of the incident and that he no longer drank alcohol. The respondent further testified that this incident led to an investigation by Child Protective Services, but the ultimate result of that investigation was a “no finding.”

The respondent admitted that while many of the actions he took after his arrest were voluntary, he was aware that the actions would be favorable with respect to the resolution of his criminal matter and that his activities were reported to the Westchester County District Attorney’s Office in relation to negotiating a plea agreement. Further, the respondent admitted that despite the field test report from the night of the arrest indicating that the respondent advised the police he had had one drink, the respondent in fact had had 3½ drinks.

The respondent submitted character letters and had witnesses testify on his behalf as to his good character.

(Mike Frisch)